Family and Matrimonial Law - SCJ

The respondent in the original family law proceeding moved to set aside default orders made at an uncontested trial regarding child support, equalization, post-separation adjustments, and transfer of the matrimonial home.

The moving party established that he never received notice of the proceeding because substituted service was effected to an email account he could no longer access.

Applying the factors from Zia v Ahmad and Mountain View Farms, the court found the moving party acted promptly, had an arguable defence on the merits regarding both the matrimonial home and imputed income for child support, acted in good faith, and would suffer greater prejudice if denied his day in court.

The motion was granted and the default orders were set aside.

The applicant sought spousal support and enforcement of insurance and RRSP beneficiary designations as per a separation agreement, after the respondent failed to comply with its terms.

The matter proceeded as an uncontested trial due to the respondent's default.

The court ordered a lump sum spousal support payment, calculated based on the agreed duration and an imputed income, and mandated proof of compliance with the insurance and beneficiary designations, noting the respondent's history of non-compliance and attempts to avoid obligations.

This decision addresses multiple motions arising from a marital separation, including parenting arrangements, venue transfer, and contempt allegations.

The court declined to vary the existing temporary parenting order, finding no material change in circumstances.

It ordered the case transferred from North Bay to Haileybury, determining the children's habitual residence at separation was in Temiskaming District.

The respondent's motion to find the applicant in contempt for alleged breaches of virtual parenting time was dismissed, as the court found no intentional breach and noted the children's age-appropriate attention spans.

An Office of the Children's Lawyer (OCL) order was also made.

The applicant father sought to change a final parenting order to obtain primary care and decision-making for the parties' two children.

The children had been living with the applicant since the respondent mother suffered a mental health breakdown in 2019.

The applicant subsequently relocated with the children to Orillia without the respondent's consent.

The court found that the applicant had perpetrated family violence against the respondent and acted in bad faith by relocating.

However, the court determined it was in the children's best interests to remain in the applicant's primary care, as they were stable, doing well in school, and expressed a strong preference to stay with him.

The applicant was granted final decision-making authority, and his request to impute income to the respondent for child support was dismissed.

The applicant sought divorce and corollary relief, including child and spousal support, and equalization.

The respondent's answer was struck, leading to an uncontested trial.

The court determined the parties' incomes, calculated child and spousal support arrears, and ordered ongoing child support and section 7 expenses.

The judgment also addressed the distribution of matrimonial home sale proceeds, including equalization payments and support arrears, and ordered the respondent to maintain extended health benefits for the children and allow the applicant to apply for children's passports without his consent.

Following a 10-day family law trial regarding parenting and financial issues, the successful applicant sought full recovery costs of $137,432.

The court found that the respondent's litigation behaviour was unreasonable and included instances of bad faith, particularly concerning financial disclosure and malicious actions regarding daycare subsidies.

However, the court disallowed the costs of the applicant's second counsel as the matter was not extremely complex.

The court ordered the respondent to pay costs fixed at $90,000.

The father brought an urgent motion to enforce a previous endorsement that maintained the status quo parenting arrangement.

The mother had previously brought an unsuccessful urgent motion to change the arrangement, and subsequently unilaterally denied the father his scheduled weekend with one of the children.

The court ordered the mother to comply with the status quo and strongly criticized her for engaging in aggressive, strategic litigation and failing to accept the previous court decision.

The father sought an interim order for joint decision-making and increased parenting time for their child.

The mother opposed, arguing for the status quo based on her primary caregiver role and concerns about the father's work schedule and the child's reactions to transitions.

The court found that the father had not acquiesced to the current schedule, which was largely a result of the mother's unilateral actions.

The court granted the father's motion, ordering joint decision-making and a gradual increase in the father's parenting time towards a 50/50 week-on/week-off schedule, finding it to be in the child's best interests.

The parties, a mother on disability and a father whose income is disputed, are engaged in protracted litigation over financial disclosure.

The Respondent sought to strike the Applicant's pleadings for alleged non-compliance with disclosure orders, including a demand for a business valuation the Applicant claimed she could not afford.

The court emphasized the principle of proportionality in disclosure, the importance of a discovery plan, and the need for counsel to exhaust reasonable efforts before seeking drastic enforcement measures.

The parties ultimately agreed to defer costs and adjourn the disclosure motions, with the court providing guidance on future disclosure requests and the need for a trial scheduling form.

The applicant mother brought an urgent motion to resume the regular parenting schedule, which was denied because she failed to attempt to resolve the dispute before coming to court.

The respondent mother subsequently sought costs for the urgency determination, arguing for an elevated award due to the applicant's unreasonable behaviour.

The court awarded the respondent partial indemnity costs of $2,100, finding no bad faith on the applicant's part but affirming the respondent's presumptive entitlement to costs as the successful party.

Following a motion for temporary spousal support, both parties sought costs.

The court determined that the applicant was the successful party, as the motion primarily concerned the quantum of support rather than entitlement, and the final order was closer to the applicant's offer to settle.

The applicant was awarded costs fixed at $4,149.36 on a partial recovery basis.

The self-represented respondent mother brought a motion seeking third-party records from the RCMP and the applicant father's family doctor, leave to file a late Response to Request to Admit, and a trial adjournment.

The court dismissed the request for medical records as a fishing expedition and refused the trial adjournment, noting the mother's delay and the lack of evidentiary basis.

The request for RCMP records was adjourned due to improper service.

However, the court granted the mother leave to file her late Response to Request to Admit, finding it raised triable issues and her delay was explained by her self-represented status.

The children's aid society sought an order placing a 16-month-old child in extended society care for the purpose of adoption.

The parents sought the return of the child subject to society supervision.

The court found that the parents' unaddressed mental health issues, history of child welfare involvement, and relationship instability posed too great a risk to the child's safety and well-being.

The court ordered the child placed in extended society care.

Applying the expanded access test under the CYFSA, the court found that an access order was in the child's best interests as the relationship was beneficial and there was no evidence it would impair future adoption opportunities.

Access was granted at the society's discretion, with a minimum of once per month.

The applicant sought to change a prior order regarding child support and section 7 expenses, alleging a material change in the respondent's income.

The respondent did not appear.

The court imputed an income of $30,530 to the respondent based on historical earnings, ordered retroactive and ongoing child support of $445 per month from September 1, 2016, and awarded costs to the applicant.

The claims for section 7 expenses were adjourned for further consideration, and the court criticized the applicant for not providing better notice of the uncontested trial to the respondent.

The applicant wife brought a motion seeking to join the respondent husband's father as a party, requesting interim spousal support, and seeking extensive financial disclosure regarding the husband's ATV rental business which had been transferred to his mother.

The court dismissed the motion to join the father due to lack of evidence connecting him to the impugned transactions and his health issues.

The claim for interim spousal support was dismissed without prejudice, as the husband's income had significantly reduced after relocating the business, and his efforts to re-establish it were deemed reasonable, precluding the imputation of income.

However, the court ordered extensive financial disclosure from both the husband and his mother to clarify the business's income and the nature of the transfer.

In this family law trial supplement, the court determined the remaining issue of ongoing child support payable by the respondent after custody and mobility issues had already been decided.

The court fixed the respondent’s pre-leave employment income at $62,000, but reduced support during an anticipated maternity and parental leave by taking judicial notice of EI benefits and setting income at $25,067.31.

The court rejected the applicant’s argument that income should be imputed during the paid leave under s. 19(1)(a) of the Child Support Guidelines, holding that the leave was reasonably required for the care of a child under the age of majority.

Because post-trial circumstances had changed but could not be proved on the agreed record, the court ordered temporary support at $214 per month and gave the respondent 60 days to bring a motion to change.

A dispute between former cohabiting partners over beneficial ownership of a home registered solely in the respondent’s name.

The applicant relied on a written agreement confirming that the respondent held legal title as trustee for both parties with each owning a 50% beneficial interest.

The respondent argued the applicant contributed little to the purchase and had breached the agreement by failing to pay expenses.

The court accepted the authenticity and effect of the written agreement and found the applicant had made substantial financial contributions including mortgage payments and vehicle payments that offset other expenses.

The court declared the applicant held a 50% beneficial interest and set out terms for buyout or sale of the property, with adjustments for unpaid contributions after January 2014.

The applicant father brought a motion for interim joint custody and equal parenting time of the parties' two-and-a-half-year-old daughter.

The respondent mother opposed the motion, seeking sole custody.

The court found that the high level of conflict between the parties, exacerbated by the paternal grandmother's interference and denigration of the mother, made joint custody or parallel parenting inappropriate.

The court granted sole custody to the mother, finding it in the child's best interests, and ordered a specified access schedule for the father.

Following a multi‑day family trial, the court determined custody, child support, and equalization of property between separated spouses.

The applicant alleged parental alienation and sought sole or joint custody, while the respondent sought continuation of an interim order granting her sole custody.

The court found no evidence that the respondent obstructed the applicant’s relationship with the children and accepted recommendations from the Office of the Children’s Lawyer to maintain sole custody with defined access.

For child support purposes, the court imputed additional income to the applicant due to undeclared cash and in‑kind payments and set support under the Federal Child Support Guidelines.

On property division, the court determined that a cottage held in the respondent’s name was held in trust for her parents and excluded it from net family property, resulting in an equalization payment owed by the respondent to the applicant.

Following a complex family law trial, both parties sought costs.

The court analyzed the parties' respective success at trial compared to their offers to settle.

Finding that neither party beat their offers to settle and both engaged in some unreasonable conduct, the court awarded the applicant partial indemnity costs based on her overall success at trial, reduced by 25% due to her unreasonable positions that lengthened the trial.